Conditions of Detention and Imprisonment
The rights to life, liberty, security of person, and guarantees of humane and dignified treatment extend to all phases of the criminal justice system including where individuals are deprived of their liberty due to some form of detention or imprisonment. Arrest, pre-trial detention, and preventive detention have been discussed in the previous section, however, there remain other forms of detention or imprisonment as well, including detention for undertrial persons and the imprisonment of persons convicted of an offence. In November 2019, Pakistan had a total prison population of 77,275 prisoners against a sanctioned strength of 57,742 translating to overcrowding of 133%.[1] Of the total number of prisoners 48,008 were undertrial or 62%.[2]
According to the fourth implementation report of the Federal Ombudsman secretariat, the Justice Project Pakistan (JPP) revealed that there is a total of 77,275 prisoners detained in prisons authorized to hold a maximum capacity of 57,742 people in Pakistan. In other words, Pakistani prisons are 34% over the official capacity. The JPP also revealed that 1,500 of these prisoners were over the age of 60 along with 1,204 women and 1,248 juveniles. In the Punjab and KPK provinces, a total of 120 mothers along with 150 children form part of the prison population while 2,100 prisoners suffer from physical illnesses and 600 individuals from mental diseases. Additionally, 2,400 more prisoners are afflicted with a variety of infectious diseases. In the wake of the Coronavirus, the disastrous consequences of overcrowded prisons are significant particularly when we take into account the large number of vulnerable inmates. Therefore, prisons should be systematically depopulated through identification of at-risk and vulnerable prisoners and their conditional release. According to the report, 65% of all detainees are still undergoing trial and have not yet been convicted. This can be addressed through the revision of situations warranting pretrial detention.[3]
- International Human Rights Safeguards and Standards
International human rights law has promulgated strict standards regarding the treatment of detainees and prisoners which are applicable at all times, and States are under a legal duty to take the necessary legislative and administrative measures to put an end to all practices that violate these rules. Article 9 of the ICCPR and Article 9 of the UDHR prohibit arbitrary arrest and detention and provide for the right to liberty and security of a person. Article 10 of the ICCPR further states that accused persons undertrial should be segregated from convicted persons and treated separately. It also requires juveniles to be housed separately from adults. The Article also notes that the aim of any prison system should be the reformation and social rehabilitation of inmates. In General Comment No. 20 on Article 7 of the ICCPR, the Human Rights Committee stated:
‘To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends.’[4]
Article 11 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also requires State Parties to keep under systematic review interrogation rules, instructions and practices for the treatment of persons subjected to detention or imprisonment to prevent any cases of torture and Article 2 of the Convention requires the State Parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Moreover, according to Article 12 of the Convention each State party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. Apart from this, guidance can be taken from Standard Minimum Rules for Treatment of Prisoners 1977 and Basic Principles for the Treatment of Prisoners 1990.
- Constitutional Safeguards
The Constitution of Pakistan protects the rights of citizens within detention as well. The right to life and liberty enshrined in Article 9 of the Constitution states that no person can be deprived of their life or liberty unless done so in accordance with law. Domestic courts have stated that the right to to life and liberty cannot be taken away from a person upon arrest.[5] Safeguards are guaranteed under Article 10 of the Constitution specifically in relation to the strict regulation of State actions when depriving an individual of their liberty. Furthermore, Article 10A guarantees the right to a fair trial and due process which has important implications for persons detained in Pakistan.
- Domestic Law and Jurisprudence
1. Domestic Law
- Health and Employment of Prisoners
Chapter VI of the Prisons Act 1894 legislates on the ‘Food, Clothing and Bedding of Civil and Unconvicted Criminal Prisoners.’ Sec. 31 provides that a civil prisoner or a prisoner who has not been convicted shall be able to maintain himself and should be able to receive proper meals, clothing and other necessities. It further states that if such persons lose the privilege to purchase these necessities such as sufficient food and clothing then it must be supplied by the Superintendent of the prison.[6] Chapter VII and Chapter VIII of the Act[7] also provides for Employment and Health of prisoners respectively. The Pakistan Prison Rules also specify the meals and quantities of food that are to be provided to the prisoners.[8]
The Pakistan Prison Rules require each prison to maintain a hospital on the premises[9] staffed by a medical officer, a junior medical officer, and a dispenser.[10] The Pakistan Prison Rules also require that a prisoner who complains of ill-ness shall be brought before a medical officer who can then assess the severity of the condition and act accordingly,[11] and Sec. 49 of the Prison Act, 1978 requires that a medical officer should certify to the fitness of a prisoner for punishment in order to assess if he is fit for punishment or not. Provinces are also in the process revising the Acts in their bid to ensure that the rights of prisoners are safeguarded. Last year government of Sindh legislated a bill to turn prisoners into correctional facilities. “The Act aims to convert prison facilities into a state of the art reformations centres which will give a platform for the prisoners to reform themselves once they complete their sentences are legally free citizens again”
- Separation of Prisoners
Sec. 27 of the Prisons Act 1894[12] and Rule 231 of the Pakistan Prison Rules 1978[13] requires the mandatory separation of convicted prisoners, under-trial detainees, male and female prisoners, and juveniles and adults. The Jail Manual also stipulates that women and juvenile prisoners are to be kept separately from other prisoners. In addition to this, Rule 154 of the Prison Rules 1978 provides that all male prisoners under 18 years old with sentences of three months or more shall be transferred to a borstal institution and juvenile prison. Pakistan has only seven juvenile detention facilities in total. Two of these are located in Punjab, four in Sindh, and one is in KP. There is no such facility in Balochistan. The KP juvenile detention facility is not functional. Therefore, these children are usually detained in prisons with adults.
- Solitary Confinement
The PPC 1860 allows the Courts to award a maximum of three months of solitary confinement as rigorous punishment. Sec. 74 further states that confinement is not to exceed 14 days at a time and when imprisonment is awarded for over three months, solitary confinement should not be for more than 7 days in any one month. Previously, prison offences committed by a prisoner were punished by an order of solitary confinement which could extend to a maximum of 14 days. . Now, however, this practice has become obsolete and prisoners can only be placed in solitary confinement through direct judicial orders. Every cell for solitary confinement is to have a yard attached to it as per Rule 623 of the Pakistan Prison Rules 1978, so the occupant can have access to fresh air. Sec. 29 of the Prisons Act 1984 also provides that every prisoner held in solitary confinement for over twenty-four hours is to be visited at least once a day by a medical officer.
- Juveniles
The Juvenile Justice System Act 2018 applies to juvenile offenders. The Act provides for the right of legal assistance,[14] creation of juvenile rehabilitation centres[15] and the Juvenile Justice Committee[16] that may alternatively dispose of cases through the process of diversion.[17] According to the Act, a separate challan[18] and trial of juvenile offenders must be carried out.[19] The Act provides for a specific provision for female juveniles[20] and also prohibits the use of preventive detention on a child.[21]
Under Section 7 of the JJSO, it is mandatory for the Juvenile Court to conduct an inquiry for the determination of age of the accused. While the said provision of the JJSO states that the inquiry shall include a medical report, a critical study of the case law would reflect that courts, sometimes, give preference to other documents (such as the birth certificate, the school leaving certificate, and national registration cards) over the medical report.
Though the promulgation of the JJSO itself is a significant measure for the protection of the rights of juvenile offenders in Pakistan, its implementation has been inadequate in many respects. For example, the law has not been put into full operation in certain areas such as the Federally Administered Tribal Areas (FATA), despite the express provision of the law and its extension through a formal government notification. The death penalty is still awarded to juvenile offenders showing courts‟ lack of concern for the fact the same has been expressly outlawed. Similarly, juvenile offenders are still jointly tried with adult accused by the same court. The probation services are neither adequate nor efficient. Juvenile offenders are kept with adults accused in jails in poor and vulnerable conditions.[22]
The UN Convention on the Rights of the Child (UNCRC) explicitly dictates that neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age. Since Pakistan is party to both the UNCRC and the ICCPR, it has an obligation to abide by their terms and provide special protections to juvenile offenders for the entire legal process, particularly sentencing. International law categorically condemns the use of of the death penalty for juvenile offenders. The Juvenile Justice System Ordinance (JJSO), 2000 and the Presidential Notification of 2001 which granted special remissions in sentences to those condemned prisoners who were below 18 when they committed the offence were attempts to abide by the principles laid down by the UNCRC and the ICCPR.[23]
In practice however, these laws have not been effectively enforced as can be observed in the case of Muhammad Iqbal v. The Province of Punjab.[24] Iqbal was below 18 years of age when he was arrested in 1998. The following year, the Court sentenced him to death and the subsequent appeals and mercy petitions filed by him were not granted. In 2018, a Writ Petition was submitted to the Lahore High Court where it was held that he had indeed been a juvenile at the time of the commission of the offence and was entitled to have his death sentence waived. They also found that his appeals and petitions had been wrongfully overlooked and delayed by the departmental authorities concerned. The JJSO and the Presidential Notification of 2001 had explicitly banned courts from awarding death sentences to juveniles, so Iqbal’s requests were perfectly within his rights. The judgment also expressed regret that he had to file mercy petitions and appeals in the first place when the same should have been done beforehand in accordance with international and domestic laws. It was only after 22 years that his sentence was reduced from the death penalty to life imprisonment as announced in 2020.[25]
The Lahore High Court was able to reach a decisive decision after noting the precedent set by the Supreme Court of Pakistan in the 2003 case titled Ziaullah vs. Najeebullah. This was decided soon after the publication of the President’s Notification of 2001 which allowed special remissions for condemned individuals who were below 18 years of age when they committed the offence. The President’s letter had explicitly stated that ‘Provincial governments shall ensure that the age as recorded by the trial court entitles the condemned prisoner to such commutation’. In this case, the Supreme Court held that questions relating to the determination of age would be settled judiciously and not by the Executive or other departments. This was to ensure that the Judiciary would retain their independence in applying the law and preventing future complexities and inconsistencies.[26]
Sec. 29-B of the Cr.P.C. 1898 allows for children under fifteen, who have committed an offence other than one which is punishable with death or transportation for life, to be tried by a Magistrate specifically provided for by the Provincial Government in accordance with the Reformatory Schools Act 1897.[27] Moreover, Sec. 399 of the Cr.P.C. 1898 provides that youthful offenders can be confined in reformatories under the Reformatory Schools Act 1897[28] established by the provincial governments where they can receive suitable education and vocational training rather than in a criminal jail.
The Prison Rules set a higher standard for the provision of education to convicted juveniles than to undertrial juveniles. Under the Rules, education is mandatory for juveniles sentenced to a prison term of one year or more. All such convicts “shall be brought under a course of Instruction, in reading, writing, and arithmetic for two hours daily,” and “[t]he standard of education will be up to the Matric standard as laid down for schools by the Education Department.” Prison superintendents are furthermore authorized to raise the standard and to increase the subjects taught, in the case of promising boys.[29] The Rules do not require the provision of education to undertrial children, who form the overwhelming majority of the juvenile prison population. In November 2019, the total number of juveniles in prison in Pakistan stood at 1248.
2. Jurisprudence
Mst. Saima Bibi v. Additional Sessions Judge (East)[30]
Mother, confined in prison, filed a petition for custody of her suckling baby. It was iterated in the case that the woman prisoner could keep her children with them in the prison till they attain the age of six. The State was responsible to provide the basic necessities to the minor and the mother whether she was in judicial custody or otherwise.
Ayyaz Ahmad v. Saqib Nazir[31]
Petitioner was a convicted prisoner and his grievance was that he had not been given medical treatment as prescribed by the medical specialist. He argued that punishing a wrong doer was the demand of law but provision of facility of health was a basic necessity, safeguarded under Rule 197 of Pakistan Prison Rules, 1978. The High Court depreciated the act of local administration, jail hierarchy as well as government functionaries, who failed to perform their duties and directed the authorities to provide health facilities to petitioners in letter and spirit as per the Jail Manual.
Suo Motu case No. 14 of 2009[32]
The case concerned the conditions of detention of prisoners in jail. It was reported that the Jail Administration continued to infringe basic rights of prisoners and the controlling authorities in the Government also displayed negligent behaviour with regards to the problems faced by prisoners. It was held that non-observance of instructions contained in the Jail Manual and Prison Rules, in respect of right and facilities to be provided to prisoners was not only violation of human rights but also was a grave legal and constitutional violation. Prisoners were entitled to fair and equal treatment in respect of their rights as citizens under the law and Constitution, which reflects the need to ensure proper conditions of detention.
Reports on Prison Conditions presented to the Supreme Court
- The Federal Ombudsman conceded before the Supreme Court that a total of 77,275 inmates are currently housed in 114 prisons in the four provinces against a sanctioned capacity of only 57,742.[33]
- A suo moto case[34] was initiated to consider and redress the plight and miseries of women prisoners detained in jails. The Supreme Court in its order outlined several critical issues relating to the deteriorating conditions of prisons in the country and required the Ombudsman to take cognizance of the shortcomings.[35]
- In 2015, a three-member bench headed by Chief Justice Anwar Zaheer Jamali heard the case on a suo moto notice regarding poor condition of prisoners, particularly women, in jails all over the country. One of the major concerns was that the police do not take appropriate measures to accommodate female prisoners and often male and female prisoners are moved together without any proper arrangements. The Supreme Court directed all the provincial governments to submit detailed reports on the facilities provided to women prisoners in jail to administer and supervise the conditions of prisoners.[36]
The Islamabad High Court (IHC) has declared that overcrowding in jails was unconstitutional and ruled that a prisoner can sue the government and prison authorities for inhumane treatment during incarceration. The court issued directives to the federal government and Islamabad’s commissioner for observance of provisions in jail manual as well as in the international conventions and treaties related to the well-being of inmates. The 38-page verdict authored by IHC Chief Justice Athar Minallah pointed out alarming conditions of prisoners, loopholes in the criminal justice system and how prisoners were subjected to inhumane treatment. “The intolerable and shockingly inhumane and degrading treatment highlighted in the proceedings in hand meets the threshold of the hypothetical illustration in the above judgement,” the court observed. “It is, therefore, obvious that the incarcerated prisoners, subjected to the unimaginable degrading and inhumane treatment highlighted in these proceedings, may have become entitled to seek damages against the prison authorities and the state.”[37]
Prisoners’ rights also extend over their personal or private affairs including health and management of assets. As seen in the case of Khizar Hayat vs. Home Department and 8 others, the Court ruled in favour of the petitioner when the Medical Officer failed to give her the complete medical reports of her condition. It was held that she and other prisoners have the right to access their medical records and use them to build their defence if they desire.[38]
Additionally, the policy on Attestation of Power of Attorney, 2018 is intended to facilitate the convenience of the prisoner as well as their relatives and visitors by providing a duly signed power of attorney in a reasonable and respectable manner in accordance to the prisoners’ fundamental rights. As seen in the case of Muhammad Idrees vs. Government of Punjab & others, the Jail Authorities have a responsibility to act in the best interests of the prisoners and facilitate them and their families in accordance with the policy and Standards of Procedure outlined within it.[39] Although jail authorities can use their discretion when allowing such visits and providing duly signed Powers of Attorney to prisoners, they are expected to do so in compliance with the spirit and letter of this law.
[1] Nasir Iqbal, Nov. 10, 2019. ‘Over 77,000 inmates lodged in 114 jails with capacity of 57,742, SC told’ (Dawn Online) available at: https://www.dawn.com/news/1515932
[2] Ibid.
[3] Shehzad, Rizwan. 2020. “Pakistani Prisons House 77,275 Inmates Against Authorised Capacity Of 57,742 | The Express Tribune”. The Express Tribune. https://tribune.com.pk/story/2183601/1-pakistani-prisons-house-77275-inmates-authorised-capacity-57742.
[4] HRC, General Comment No. 20, ‘Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment
or punishment)’ 10 March 1992 UN Doc HRI/GEN/1/Rev.9 (Vol. I)
[5] Benazir Bhutto v. President of Pakistan PLD 1998 Supreme Court 388
[6] Sec. 33 Prisons Act 1894 (Act of IX of 1894)
[7] Prisons Act 1894 (Act of IX of 1894)
[8] Chapter 20 Pakistan Prison Rules 1978
[9] Rule 787 Pakistan Prison Rules 1978.
[10] Sec. 6 Prison Act 1894 and Rule 1063 of the Pakistan Prison Rules 1978
[11] Rule 788 Pakistan Prison Rules 1978
[12] Prisons Act 1894 (Act IX of 1894)
[13] Pakistan Prison Rules 1978
[14] Sec. 3 Juvenile Justice System Act 2018
[15] Sec. 20 Juvenile Justice System Act 2018
[16] Sec. 10 Juvenile Justice System Act 2018
[17] Sec. 9 Juvenile Justice System Act 2018
[18] Sec. 7(2) Juvenile Justice System Act 2018
[19] Sec. 4 Juvenile Justice System Act 2018
[20] Sec. 17 Juvenile Justice System Act 2018
[21] Sec. 5(2) Juvenile Justice System Act 2018
[22] Amnesty International, „Pakistan: Protection of juveniles in the criminal justice system remains inadequate‟. Online. Available at http://www.amnesty.org/en/library/asset/ASA33/021/2005/en/24a9ffb0-d4b6- 11dd-8a23-d58a49c0d652/asa330212005en.pdf
[23] The Death Penalty In Pakistan – A Critical Review. 2019. 1st ed. Lahore: Justice Project Pakistan.
[24] Writ Petition No.24302/2019
[25] Order Dated [6.02.2020] for writ petition
[26] The Death Penalty In Pakistan – A Critical Review. 2019. 1st ed. Lahore: Justice Project Pakistan.
[27] The Reformatory Schools Act 1897 continues to be in force and was recently referred to in Zia Ahmed Awan v. Government of Sindh 2002 P.Cr.L.J 659 Karachi High Court Sindh
[28] Reformatory Schools Act 1897 (Act VIII of 1897)
[29] 298 Pakistan Prison Rules 1978
[30] 2018 P.Cr.L.J 1328
[31] 2017 PLD 342
[32] 2010 GBLR Supreme-Appellate Court Gilgit 50
[33] ‘Over 77,000 inmates lodged in 114 jails with capacity of 57,742, SC told,’ (Dawn.com) 10 November 2019 available at: https://www.dawn.com/news/1515932
[34] Suo Moto Case No. 1 of 2006 (Miserable Conditions of Women in Jails)
[35] ‘Federal Ombudsman of Pakistan Proposals for Reform in Prisons and Initiatives taken to Provide Education and Skills to Prisoners Particularly Women and Children,’ (Mohtasib.gov.pk) 24-25 November 2015 available at: http://www.mohtasib.gov.pk/images/pdfs/JailReforms.pdf
[36] ‘SC seeks report over facilities to women prisoners in Jails,’ (Brecorder.com) 14 October 2015 available at: https://www.brecorder.com/2015/10/14/257170/sc-seeks-report-over-facilities-to-women-prisoners-in-jails/amp/
[37] https://www.outlookindia.com/newsscroll/islamabad-hc-declares-overcrowding-in-jails-unconstitutional/1792693
[38] W.P.No.13010 of 2013
[39] W.P.No.5717/2020